Leaving the EU is not a crime

In the latest shock twist to the Brexit saga, last night MPs voted by 311 to 302 to compel the government’s special advisers to hand over their private communications. The motion demanded the disclosure of correspondence ‘whether formal or informal’ – that is, private emails and WhatsApp messages – related to Boris Johnson’s prorogation of parliament. The motion was signed by Remainer MPs including ex-Tory Dominic Grieve, Green MP Caroline Lucas, and Lib Dem leader Jo Swinson.

The motion took the form of a ‘humble address’, an arcane measure which invites the queen to issue commands directly to government ministers. The hypocrisy of this is staggering. Dominic Grieve told Newsnight only two months ago that it was his ‘duty’ to avoid drawing the queen into politics. Both Lucas and Swinson have, in the past, boasted of their credentials in defending civil liberties. Yet last night, they all put their name to a motion asking the monarch to compel private citizens to hand over private communications.

It is hard to think of a time when the law has been more readily abused by politicians. It follows the ‘Benn Bill’, which received Royal Assent yesterday. The bill, supported by Remainer MPs, effectively made it illegal for the UK to leave the EU without a deal – now the only viable route to delivering a clean Brexit. They have threatened to prosecute the prime minister if he does not seek an extension to the Article 50 process, or alternatively throw him in prison for contempt of court.

Remainers claim they are simply standing up for the ‘rule of law’. But they are bending the criminal law to fit a political purpose. For instance, Remainers want to prosecute Boris for the crime of ‘misconduct in a public office’ should he fail to obey the terms set out in the Benn Bill. This offence is normally associated with prison officers smuggling contraband into prison or police officers who take bribes – not with politicians implementing the result of a referendum. The law requires that a public-office holder wilfully neglect his duty or wilfully misconduct himself. This misconduct has to be so serious that it would amount to an ‘abuse of the public’s trust in the office holder’. In a 2003 case, the Court of Appeal said that the ‘element of culpability must be of such a degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment’.

Of course, the prime minister has a duty to obey the law. But this does not automatically mean that ignoring this specific law would amount to criminal misconduct. There are, after all, large sections of the public that would also expect him to carry out the result of the referendum and take us out of the EU. The idea that ignoring the Benn Bill would represent an ‘abuse of the public’s trust in the office holder’ completely ignores the fact that most of the public expect Boris to get Brexit done. No one can realistically say that a refusal to seek a Brexit extension would be ‘calculated to injure the public interest to such a degree so as to call for condemnation and punishment’.

The law also requires that the office holder has no ‘reasonable excuse or justification’ for what they do. Here, there is a ‘reasonable excuse’ – the votes of 17.4million people, the largest democratic mandate in UK history.

Then consider that any prosecution has to be carried out ‘in the public interest’, according to the Crown Prosecution Service’s Code for Crown Prosecutors. There is simply no way that prosecuting the sitting prime minister would be considered in the public interest by any reasonable director of public prosecutions in the current circumstances.

It should be obvious that Brexit raises difficult constitutional questions which cannot be readily resolved by the black-and-white nature of the criminal law. The repeated intervention of lawyers in the Brexit process is not about upholding the rule of law – it is about upholding the rule of lawyers at the expense of democracy. These interventions risk doing far more damage to public trust in the rule of law than Boris would if he refused to seek an extension from the EU.

The Remainers, with their repeated calls to use the law to smother Brexit and to prosecute the prime minister, are the ones who are really abusing the law.

Michael Lynch

11th September 2019 at 1:15 pm

The Scottish Court is just in. We have had plenty Remain reaction and it’s the usual ‘our Judges are most impartial in the world’ narrative. Well, doesn’t that depend on which side of the debate you’re on? No one is impartial about Brexit, the country is riven down the middle; the most consistent aspect of Brexit. Even Judges will be influenced by private opinion over Brexit. Are they not merely human like the rest of us? I mean, come on, whose side did we really expect the Scottish Court to come down on?
What gets me about the Politicians is their daily insistence that they wish to bring the country together and mend the divisions in our society. How on earth do they propose to do that when both sides have been shouting and grandstanding all day long during every parliamentary session since the result? Do they not understand that their actions will not and cannot ever facilitate this? They are in deadlock and so is the country. It’s time indeed for the people to take over, not via another long drawn out referendum debate, but a general election. Let us tell them who we want to deliver Brexit. What are they so afraid of if they are so right?

David Webb

11th September 2019 at 2:52 pm

This is just a power grab by the judges. The Scottish judges have no right to rule on this.

Jeremy Fletcher

11th September 2019 at 1:09 pm

There has to be something wrong with this because otherwise a majority government could pass a law saying that opposition MP’s must support the government in a parliamentary vote

Amelia Cantor

11th September 2019 at 10:25 am

It’s worse than a crime — it’s a blunder!

Or rather, it’s both. On the one hand, we had massive lies and deceit from the likes of Dominic “Two Brains” Cummings and Nigel “Fascist” Farage. That was the crime. Or series of crimes. On the other, we had the self-harming stupidity of low-information white racists and xenophobes. That was the blunder.

David Webb

10th September 2019 at 11:43 pm

What they’re saying is that the Treason committed by Bercow, Letwin and others in secretly negotiating with the EU to undermine the UK negotiating position should not lead to them being arrested to treason, but if Boris Johnson attempts to fulfil his privy counsellor oath not to transfer the queen’s legislative authority to a foreign body, he will be arrested!!! I was alerted to this issue by a video I listened to at https://www.youtube.com/watch?v=dqAF7dpvIhE

David Webb

10th September 2019 at 11:43 pm

arrested to treason>>> arrested for treason

ZENOBIA PALMYRA

10th September 2019 at 9:48 pm

Lying to people before the referendum about what EU represents is a crime. Lying to people after the referendum about what you said before the referendum is also a crime. To exit the EU with no deal would therefore be a crime since the EU has been entirely misrepresented by the reactionary hard right press and not even Farage or Hannan were selling Brexit on the basis of no deal before the advisory referendum.

A Game

10th September 2019 at 9:40 pm

Thanks for some info.

So Boris Brubaker has a clear choice: abuse the public’s trust and go to jail, or deliver Brexit by the 31st.

Jonathan Castro

10th September 2019 at 9:33 pm

Why did Boris stop the Lords filibustering, and send the bill for Royal Assent? Why did he think Corbyn would vote for an election when he’s well down in the polls? Did he just believe it because a couple of Labour peers told him?

He and Cummings are either very naive and not thinking, or are going for May’s surrender treaty.

Jim Lawrie

10th September 2019 at 8:38 pm

Thanks for the legal précis Mr Gittos.

Britain First

Jim Lawrie

10th September 2019 at 6:51 pm

It was not part of the role when he took office.
The oath of allegiance is to the Crown and its laws, not Parliament and its whims.
The same oath is taken by a whole network of Public Officers who might loyalty might not be to Remain, but whose cooperation is essential.

Maybe Remain will commandeer cross channel ferries and cruise ships and lock up everybody who disagrees with them.

James Knight

10th September 2019 at 6:06 pm

This is not rule of law it is corruption of law to political ends. You cannot have a law for one person at one time that makes it a crime not to send a letter. That would turn Johnson into the very definition of a “political prisoner”.

Johnson needs to tell them to have a General Election or stick it where the sun don’t shine.

Christopher Tyson

10th September 2019 at 5:41 pm

I’m not sure about this, but if this is criminal law, would Boris be entitled to a trial by jury? That would be a fantastic spectacle. Maybe the Remainers are onto this already, drafting a law to deny jury trials in circumstances pertaining to the carrying out of imperatives in relation to Brexit. Maybe Johnson would be henceforth removed to the Tower of London without trial, and maybe they could arrange a viewing gallery, perhaps a window with iron bars befitting the Tower of London’s history and architecture, and we could all wander by and have a peak at the disgraced /martyred heretic, for a small fee (we recommend a donation of £4) if you are all too mean to pay up a compulsory fee of £9.50 will be introduced, yes, there’s something fitting about the former mayor of London being holed up in the Tower of London, but I’m no lawyer so…

Mike Ellwood

10th September 2019 at 5:58 pm

Call it €10? Gotta get with the EU programme.

After all, those idiots have already sh@t on our democracy. It can only be a matter of time before they sh#t on our currency.

Jim Lawrie

10th September 2019 at 8:09 pm

A jury trial? Are you kidding? They’d probably resurrect the Diplock courts for this one and put him in The Maze.

David Hussell

10th September 2019 at 4:29 pm

Although I have lived all my life in the relatively peaceful UK, and so have never lived before or during a civil war, I think that the atmosphere in parliament, the media and in certain parts of the public square, seem to have what I would imagine is, a pre-civil war feel.
All this has been brought about by a few thousand arrogant, self-serving zealous Remainers, from within the Westminster bubble. For as Nigel Farage said, for democracy to work the losers must concede defeat. If they don’t, which is what we have seen these last three and more years, only trouble and very bad things can result.

Ven Oods

10th September 2019 at 5:22 pm

Not forgetting, however, that Nige is reported as saying that, in the event of a close referendum result (but with Remain winning) he’d want another referendum…

Jerry Owen

10th September 2019 at 7:06 pm

No Nigel didn’t .

ZENOBIA PALMYRA

10th September 2019 at 9:52 pm

‘All this has been brought about by a few thousand arrogant, self-serving zealous Remainers, from within the Westminster bubble.’ —

Nothing to do with Brexiteer aggression? One of yours has already killed an MP. Perhaps if people in places like Sunderland and Clacton had taken some personal responsibility ten or twenty years ago and started organising locally to pressure London into helping the regions then we wouldn’t be in our current predicament. It is absurd to blame the EU for the internal failings of the British state.

A Game

10th September 2019 at 11:09 pm

Ah, Momentum speak. Doing their bit for the EU cause.

So, everyone, 250 million quid a week and you’ve still got to get off your arse and agitate.

Kevin Neil

10th September 2019 at 1:51 pm

I also think that this “Humble Address” could effectively be compelling the Government to commit various and numerous breaches of the General Data Protection Act.
As such, surely one option would be for the Government (that wants to leave the EU) to lodge a complaint with the ICO that Parliament (that wants to remain) is breaking a flagship piece of EU-derived legislation – how ironic would that be?!

Mike Hunt

10th September 2019 at 3:07 pm

That’s certainly a way , I wonder what the courts would think of a spur of the moment bill which in the face of it breaches EHCR article 8 , as you say DPA and could not be justified under Investigatory Powers Act 2016.

Jane 70

10th September 2019 at 1:25 pm

An ‘abuse of the public’s trust in the office holder’: surely this could apply collectively, to those who are threatening to send the PM to prison.

They abused and forfeited my trust many many moons ago.

Legal encroachments aside, surely any attempt to carry out this frankly ridiculous piece of legal chicanery would hand the PM the martyr’s crown and thus win much public support.

What judge in his or her right mind,would consider sentencing a PM in office to a stretch inside, even if the case did get past the CPS?

Jane 70

10th September 2019 at 1:32 pm

And wouldn’t the Human Rights legislation have some relevance here?

Ed Turnbull

10th September 2019 at 12:58 pm

Can’t the anti-democratic morons pulling these legal stunts see that this is not going to end well? Do they really think that leavers (and those remainers who’ve accepted the referendum result like adults) will actually go quietly into that goodnight? Orwell wrote (this is from memory so if not word for word accurate I beg pardon): “We sleep soundly in our beds because rough men stand ready to do violence on our behalf”. Well, I’m betting that the majority of today’s ‘rough men’ didn’t vote ‘remain’, and they’re not going be too happy that the result of their free choice has been stolen from them. Well, I’ll sleep soundly in my bed, but can we say the same of those trying to thwart the will of the majority of the people. The ‘rough men’ may have an opinion on that.

It’s been more than three and a half centuries since the last civil war, but now I wonder if we’re inching toward another.

Niall Pembroke

10th September 2019 at 1:26 pm

Absolutely right in you comments Ed. With all the shenanigans of the undemocratic Remoaner cabal in Westminster and the fanatical behavior of their cheerleaders in the MSM I too get the strong feeling that we are heading for a civil war.

ZENOBIA PALMYRA

10th September 2019 at 9:48 pm

‘civil war’ — Brexiteers have a disturbing propensity to violence. Was Jo Cox’s murder by a Brexit nutter not enough for you?

ZENOBIA PALMYRA

10th September 2019 at 9:58 pm

You’re really itching for some violence aren’t you. Is it something to do with the Brexiteer obsession with WWII? Are you gearing up to fly your Spitfires over the White Cliffs of Dover? Got a real life economic plan for post-Brexit Britain? No, I thought not, just primitive jingoism and pathetic nostalgia for the ‘glory days’ of Empire. BTW, the Russians won WWII on our behalf…

A Game

10th September 2019 at 11:17 pm

And proof that a little bit of knowledge is a dangerous thing.

Michael Lynch

10th September 2019 at 12:50 pm

Isn’t the law open to interpretation? Isn’t that why we have defenders, prosecutors, juries and judges? Parliament passes law, but laws are always subject to further scrutiny in the courts. Boris has legal experts too and they can test the current bills ad infinitum if they so choose. Ruling and appeal followed by more ruling and appeal, taking up weeks of tedious study on both sides. The current Parliament has proved the case for bad law by rushing through the last few bills for the sake of political expediency. These bills must be therefore full of holes?

Mike Ellwood

10th September 2019 at 6:07 pm

Absolutely. The Official Secrets Act is an example of a bad law that was rushed in in about 5 minutes in an emergency. There was (just about) an excuse for that, when people thought that the Kaiser might have been landing at Dover any time soon.

(Unfortunately, it was never properly revised in the more relaxed times of peace (in fact it was made worse), because successive governments found it useful to use it in ways which its originators had probably never intended.

We’ve seen the same sort of thing in more modern times with anti-terrorism legislation being used against peaceful protesters, etc.

Mike Hunt

10th September 2019 at 11:59 am

I think the requesting of personal communications data may be a breach of EHRC article 8 , also the Investigory Powers Act 2016 controls communication data and I think they would have problems with this as it’s not clear any crime may have been committed and the use of such act normally requires the suspected crime to carry a sentence of at least a year in prison otherwise it’s not considered proportionate. Likewise you have to give a lot of assurances about third party collateral intrusion and leaking any “juicy” titbits could end up with severe consequences for the person who leaks . I would imagine the Act will get legally challenged as it clearly is an abuse of remainer power

The Angry Voter

10th September 2019 at 11:31 am

So does this mean lots of civil cases against Remanier MP’s who have blocked Brexit?